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    Adult Child Maintenance 1024 576 Dorter

    Adult Child Maintenance

    Child Maintenance Application

    Child Maintenance for children aged over 18 years

    If you are a parent with a child who is nearing their 18th birthday, you may be able to seek adult child maintenance for your child or children.

    To successfully apply for financial assistance from the other parent, you must show that the maintenance is ‘proper’ in the circumstances, meaning it is necessary to assist a child to complete his or her education, or because the child has a mental or physical disability.

    An application for adult child maintenance can be made by a parent or the child.

    An application for adult child maintenance will take into consideration two primary factors:

    1. The financial support required for the child: and
    2. Each parent’s financial capacity to pay, and the level of financial support already provided for the child and any other dependents.

    The order will cease to be in force if maintenance was granted for educational purposes and that course comes to an end. Equally, if a child is granted maintenance because of a disability and the child no longer has that disability, the maintenance will cease.

    The financial needs of the child

    An application for adult child maintenance will consider the ‘proper needs’ of the child and will consider the age of the child, the level of education being sought and the parent’s expectations in relation to their child’s education.

    A maintenance order does not necessarily impose the child’s university fees on the parents but rather considers the child’s reasonable ongoing living expenses to enable them to complete their education and will take into account the child’s income and earning capacity.

    Necessary expenses may include a contribution towards their living expenses and the purchase of textbooks and equipment. However, HELP-HECS payments for student fees are not deemed to be a necessary expense. The Family Court has previously ruled that university students can earn an income whilst studying fulltime and are capable of assisting with the ongoing costs of studying.

    For adult children with a special need or disability, expenses associated with their need or disability can also be considered.

    Examples of Adult Child Maintenance cases

    In Re AM [1], a 28-year-old daughter developed a disability as an adult requiring ongoing care which prevented her from working. The daughter sought a maintenance order against her father. The father argued that the disability must carry over from childhood for him to meet the requirement. The Court stated that there is no aged-based limitation and the disability as referred to in the Family Law Act refers to the consequence of the disability rather than the cause.

    In Charlton & Crosby [2] the mother sought financial assistance for a child over 18 who was living with her and studying full-time at university. The child was estranged from the father.

    The mother sought a maintenance order for the child’s weekly expenses arguing the child was unable to work whilst completing his studies. The father argued the child was able to work part-time and assist with his expenses.

    The court determined that the mother and father were expected to provide a ‘level’ of financial support as the child was not capable of fully supporting himself. The court ruled that because the father was estranged from the child it was not proper for both parents to contribute equally, as was sought by the mother. The court ordered that the father meet 20% of the child’s expenses.

    In O’Dempsey and Van Raay [3], the court considered the meaning of a course of education. The adult child sought maintenance from his father to transfer his pilot training course from part-time to fulltime to complete the course in 12 months. The court determined that a pilot training course is a course of education and the meaning of ‘education’ is not limited to statutory categories of education.  However, the father in this case was not ordered to pay maintenance as it took into consideration the child’s current income and his capacity to pay for the course as a part-time student.

    In FM v FM [4], a mother was unsuccessful in her application for adult child maintenance for her 19-year-old daughter who had cerebral palsy and was intellectually impaired. The mother did not satisfy the requirement that her daughter was unable to work in any capacity or was unsuitable for employment.

    In Wadsworth and Wadsworth [5], a father successfully overturned an order for adult child maintenance for his twin sons on the basis that they refused to work whilst completing their university degrees. The judge found that the children’s refusal to work justified a reduction in maintenance.

    The Full Court in Everett & Everett [6], considering an appeal against an order made for adult child maintenance, made the following observations:

    1. It is not a necessary element, before adult maintenance can be ordered, that there be a warm relationship between the parent and the child;
    2. An application for an adult child maintenance order should not include a detailed examination of the relationship between the child and the respondent; however
    3. The attitude or behaviour of the child to the respondent could be a special circumstance which, if not taken into account, would result in an injustice or undue hardship.

    If you have any questions about adult child maintenance or would like to know if your child could obtain financial assistance as an adult, please contact us on (02) 9929 8840.

    Tim Russell
    Solicitor

    Rebekah Dorter
    Principal


    [1] Re AM (Adult Child Maintenance) (2006) FLC 93-262.

    [2] Charlton v Crosby [2010] FMCAfam 207.

    [3] O’Dempsey and Van Raay (1990) FLC 92-178.

    [4] FM v FM (1997) FLC 92-738.

    [5] Wadsworth & Wadsworth [2013] FCCA 2043.

    [6] Everett & Everett (2014) FLC 93-604.

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    Role and Responsibility of the Independent Children’s Lawyer 768 432 Dorter

    Role and Responsibility of the Independent Children’s Lawyer

    How to deal with Children and Separation

    An Independent Children’s Lawyer has been appointed. What does this mean?

    An Independent Children’s Lawyer (“ICL”) may be appointed by the Family Court in parenting matters involving complexity, such as issues of risk, family violence and abuse. The ICL is appointed to represent the “best interests” of the child(ren). It is important to note that this does not mean that the ICL represents the child(ren). An ICL is not bound by instructions from a child(ren) and does not represent them in the same manner as the parents to the proceedings are represented. The ICL’s ultimate duty is to the Court.

    When an ICL is appointed, the standard procedures undertaken are as follows: –

    1. The parties provide a copy of their respective Court documents to the ICL;
    2. A copy of all Orders are provided to the ICL; and
    3. The ICL is provided permission from the Court to issue subpoenas to obtain independent evidence.

    Does my matter need an ICL?

    An ICL is appointed in matters where there is complexity. Some examples include, but are not limited to, the following:-

    1. When there are allegations of abuse (physical, verbal, emotion or sexual);
    2. Where there is an intractable dispute between the parties;
    3. When there are allegations of mental health concerns for the child(ren); or
    4. When there are allegations that one or both parents are suffering from mental health issues.

    These issues are usually identified in a party’s Affidavit or Notice of Risk / Notice of Child Abuse, Family Violence or Risk.

    The appointment of the ICL can be made by the Court of its own volition, or one or both of the parties may make an application to the Court.

    What is the Role and Responsibility of the ICL?

    The ICL’s role is effectively to: –

    1. Act in the bests interests of the child(ren);
    2. Ensure that the Court is aware of the child(ren)’s wishes (pending the age of the child(ren));
    3. Collect expert evidence relevant to the child(ren);
    4. Act upon the evidence;
    5. Assist the Court in the determination of the parenting dispute.

    Should the ICL meet with my Child(ren)?

    It is not required that the ICL meet with the child(ren). The ICL is required to make an assessment of the facts of each case and identify whether or not it is appropriate to meet with the child(ren). Some examples when an ICL will not meet with a child(ren) are: –

    1. Very young children who may be unable to express a view (generally under school age);
    2. There are exceptional circumstances such as a risk of systems abuse; or
    3. Where there are practical limitations on meeting the child such as geographical remoteness. However, this issue is becoming less relevant in the current landscape where electronic communication is ever increasing.

    Who Pays for the ICL?

    Generally, an ICL is appointed by Legal Aid NSW and it is expected that the parties to the proceedings meet the costs of the ICL in equal shares, unless you are in receipt of a grant from Legal Aid. This amount is currently $3,300.00 up to the Defended Hearing, however, the specific facts of the matter may cause this figure to change.

    Legal Aid NSW has the ability to waive the ICL’s fee, however, this is only in exceptional cases.

    The Family Court of Australia has developed a document titled “Guidelines for Independent Children’s Lawyers (2013)”. These guidelines are the basis upon which ICL’s act and may be accessed here.

    If you would like any assistance with the above, Dorter Family Lawyers and Mediators are expert family lawyers who specialise in all areas of family law and can assist. Please contact with us on (02) 99298840.

    Rebekah Dorter
    Principal

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    What is Arbitration in Family Law? 1024 683 Dorter

    What is Arbitration in Family Law?

    Arbitration in Family Law Matters in Australia

    It is trite to say that the Family Court system is overburdened with matters, and that delays for litigants in reaching a final determination of their matter is continuing to grow. It is not unheard of that parties may have to wait up to 3 to 5 years for a Trial. There are serious financial and emotional consequences for all involved. A solution is Alternate Dispute Resolution – an umbrella term for processes that do not involve the Court or a Judicial Officer. This article provides some insight on “Arbitration” in the Family Law system.

    Arbitration is a confidential dispute resolution process arranged privately in which the parties and their legal representatives appoint an ‘Arbitrator’ who decides the outcome of the dispute. The decision is called an “Award” and it is issued within 28 days and registered with the Family Court. It has the same ‘effect’ as a court Order.  

    The manner in which the Arbitration is conducted is agreed between all of the parties but is mostly guided by the Arbitrator. In effect it is conducted like a formal Court Hearing – evidence is presented to the Arbitrator and the parties (and any witnesses) are cross-examined on their evidence. It is conducted in strict confidence – the Hearing is in private and is not open to the public and all involved are bound by obligations of confidentiality.

    In Arbitration the parties and the legal representatives choose the Arbitrator (often an accomplished Barrister or former Family Court Judge) who they deem best suited to the case and best able to determine the matter in a reliable, independent, and timely fashion. This choice for the parties is not present in a Court process – there is no say about the Judge given.

    The main drawcard for Arbitration is that with collaboration the readiness and completion of the dispute can take place in a matter of weeks, not years, which is far more cost effective for the parties and enables the parties to move forward with their lives. It also provides the parties with control over the process – they choose the Arbitrator, the date and the formalities. For these reasons, the process is becoming increasingly more popular as the Family Court system continues to struggle to cope with the number of litigants.  

    It is important to note that Arbitration can only take place where all parties agree to it. You cannot compel a party to undertake the process. It is also only reserved for financial matters – it cannot decide parenting disputes. Mediation is usually the appropriate forum outside of the Court process for parenting matters.

    In our experience Arbitration is often a worthwhile means to resolve some protracted disputes and assists with minimizing the costs and delays otherwise experienced by the parties if their matter continues through the Court process.

    To discuss whether this form of dispute resolution is right for you, Dorter Family Lawyers and Mediators are expert family lawyers who specialise in all areas of family law and can assist. Please contact with us on (02) 9929 8840.

    Rebekah Dorter
    Principal

    Andrew Johnson
    Partner

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    The Duty of Disclosure 1024 575 Dorter

    The Duty of Disclosure

    Do I have to Disclose?

    The answer is… Yes!

    We are often asked by our clients what they must disclose in their family law matter after they have separated from their partner and what their former partner is obligated to disclose.

    Both parties to a marriage or de-facto relationship are required to provide full and frank disclosure of information relevant to their financial circumstances. This means parties must provide each other with all information relevant to an issue in their case, including information recorded in a paper document or stored by some other means such as a computer storage device and also includes documents that the other party may not know about.

    This duty of disclosure is a positive duty imposed by the Family Law Rules and the Federal Circuit Court Rules and is quite different to the obligations parties may have in a commercial dispute.

    What does disclosure involve?

    As part of your disclosure obligations, common documents required are those that evidence the following: –

    1. All income or earnings (whether paid directly to the party or not);
    2. Any interests in any ‘property’ or entity fully or partially owned or controlled by the party;
    3. All financial resources, including interests in a trust;
    4. Any disposal by the party that may affect, defeat or deplete a party’s claim; and
    5. All liabilities of the party or of any relevant entity.

    ‘Property’ for the purpose of a family law settlement is not just real property but is a much broader concept and means all assets, including superannuation.

    When does your duty to disclose begin?

    Your duty to disclose begins once you separate (with the pre-action procedures) which means before a case starts, and this duty continues until the case is finished. The duty of disclosure is an ongoing obligation and extends to all documents in your possession, power or control.

    Your duty to disclose continues until your matter is finalised which means that you must continue to provide such information as your circumstances change or more documents are created or come into your possession, power or control.

    What happens if a party to a case does not disclose?

    There are a number of consequences which may follow if a party to a case fails to disclose, including but not limited to cost orders, and if a matter has been finalised the settlement may be re-opened if the non-disclosure resulted in a detriment to the other party.

    It is important to provide disclosure in a timely matter, and to be honest and forthcoming with your disclosure documents. Non-disclosure contributes to significant delays in resolving a family law matter and significantly increases costs.

    Dorter Family Lawyers and Mediators offer specialist family law advice in Milsons Point on Sydney’s Lower North Shore, and are available to assist you with any questions you may have about child support.  Please get in touch with us on (02) 9929 8840 or hello@dorterfamilylawyers.com

    Rebekah Dorter
    Principal

    This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.

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    Declaration of Nullity and Divorce 800 533 Dorter

    Declaration of Nullity and Divorce

    “Is a Declaration of Nullity the Same as a Divorce?”

    After married couples have been separated for a period of twelve (12) months they may wish to apply to the Family Court or the Federal Circuit Court for Divorce. Some clients, however, ask if they can obtain a Nullity rather than a Divorce order.

    What is a Nullity?

    A Declaration of Nullity is a finding by the Family Court of Australia that, although a marriage ceremony may have taken place, the marriage between the parties is void and not legal. As a result, the outcome is that the parties to the void marriage do not become divorced, but rather it is as though they were never married in the first place.

    How to Declare Nullity

    The Court is able to make such a declaration in accordance with the Family Law Act however, there are very specific grounds upon which a Declaration of Nullity may be sought. A Declaration of Nullity may be made on the following grounds:

    1. At the time of the parties’ marriage, one of the parties remained married to someone else (a previous relationship where no divorce occurred);
    2. The parties are in a prohibited relationship;
    3. The parties did not comply with the laws of the marriage in the country they were married;
    4. Either party was not of a legal age to marry and did not hold the relevant approvals; or
    5. Either of the parties did not give their real consent to the marriage because:-
      • consent was obtained by duress or fraud;
      • one party was mistaken as to the identity of who they were marrying or the nature of the ceremony; or
      • one party was mentally incapable of understanding the nature and the effect of the marriage ceremony.

    When do you want to seek a Declaration of ‘Nullity’ and not a ‘Divorce’?

    The purpose of a Declaration of Nullity is to find a marriage “void”, meaning “of no effect”. The primary reason a Declaration of Nullity is sought is when one of the parties is already married. This is often the case when: –

    1. A party is unaware that their previous marriage was formally registered; or
    2. A party is unaware that no Divorce Order has been granted in relation to their earlier marriage.

    A recent Family Court Decision dealt with this issue whereby an Application for Nullity was sought. In this case, the Wife had not obtained a Divorce Order from her previous Husband. The Wife had been separated from her former Husband for approximately 12 years prior to the second marriage, however, she was not aware that a Divorce Order had not been granted from her first marriage.

    In this matter, there were three (3) steps that needed to be completed: –

    1. Apply to the Family Court for a Declaration of Nullity;
    2. Obtain a divorce from her first Husband; and
    3. Legally re-marry.

    When is a Marriage Recognised?

    The ­­­­­­­­­­­­­­­­­­­­Marriage Act 1961, defines a marriage as “The union of 2 people to the exclusion of all others, voluntarily entered into for life.”

    The criteria to be legally married in Australia, requires that you must: –

    1. Not be married to another person;
    2. Not be marrying a parent, grandparent, child, grandchild, brother, or sister;
    3. Be at least 18 years old, unless a court has approved a marriage where one party is aged between 16 and 18 years old;
    4. Understand what marriage means and freely consent to becoming husband and wife;
    5. Use specific words during the ceremony; and
    6. Give written notice of the intention to marry to their authorised celebrant, within the required time frame.

    If you would like any assistance with the above, Dorter Family Lawyers and Mediators are expert family lawyers who specialise in all areas of family law and can assist. Please contact us on (02) 99298840.

    Luke Meehan
    Solicitor

    Rebekah Dorter
    Principal

    This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.

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    Understanding Child Support 1024 683 Dorter

    Understanding Child Support

    What is Child Support?

    In Australia the Federal Government, through Services Australia, administers the assessment and collection of Child Support to ensure children receive an appropriate level of financial support from their parents after they separate or divorce. Services Australia provides services to parents and carers, assisting them by issuing assessments, reviewing those assessments and facilitating the collection of child support.

    How do I apply for child support?

    A parent can apply to the Child Support Agency (‘the Agency’) for an assessment to be made, for the other parent to pay them child support to assist with payment of expenses incurred for the benefit of the children of the relationship. 

    When a parent makes an application for child support, that application means that both they and the other parent will be assessed in respect of the costs of the children. This assessment is made by comparing the respective income of the parents, coupled with the nights per calendar year each child spends with the parents.

    When there is more than one child of the relationship, an application must be made for each child.  This application can be done online and requires the applicant to provide the following details of both parties:

    1. Contact details;
    2. Reference numbers;
    3. Income;
    4. Bank account; and
    5. Relationship details.

    Can I Change the Rate of Child Support Payable?

    There may be several reasons how the amount of child support that you have been assessed to pay can change, including

    a. Application to change the assessment

    Once your annual rate of child support has been assessed, both you and your ex-partner may be able to apply to the Agency to change the assessment. The Agency is only able to change the assessment if they are satisfied there are special circumstances and the change would be fair to both parents and the child.

    There are 10 reasons to apply for a change of assessment, including:

    1. The costs of raising the child are significantly affected by the high costs of spending time or communicating with the child.
    2. The costs of raising the child are significantly affected because of their special needs.
    3. The costs of raising the child are significantly affected because the child is being cared for, educated or trained in the way both parents intended.
    4. The child support assessment is unfair because of the child’s income, earning capacity, property or financial resources.
    5. The child support assessment is unfair because you have paid or transferred money, goods or property to your child, the receiving parent or a third party, for the child’s benefit.
    6. The costs of raising the child are significantly affected by the parent or non-parent carer’s child care costs, and the child is under 12 years of age.
    7. Your necessary expenses significantly reduce your capacity to support the child.
    8. The child support assessment is unfair because of the income, earning capacity, property or financial resources of one or both parents.
    9. Your capacity to support the child is significantly reduced because of:
      a. your duty to maintain another person or child;
      b. the special needs of that person or child; and
      c. the costs of spending time with or communicating with that person or child.
    10. Your responsibility to support a resident child significantly reduces your capacity to support another child.

    The Agency is required to notify both you and your ex-partner in writing when an application to change a child support assessment is accepted.

    By entering into a Child Support Agreement

    You and your ex-partner can agree to provide regular payments and/or payments for your children’s expenses that differ from what was assessed by the Agency and enter into a private agreement.

    A child support agreement allows payments to be made in a number of ways including periodic payments, lump sum payments and payments for certain expenses (such as private school fees, extra-curricular activities and private health insurance), which are known as non-periodic payments. Further, both you and your partner can agree to enter into a binding agreement that provides for neither party to pay child support at all.

    Depending upon the terms of the agreement, non-periodic child support may be made instead of the regular periodic payments or in addition to the regular periodic payments.

    There are two types of child support agreements that you and your ex-partner may enter into, namely:

    1. A Binding Child Support Agreement (‘BCSA’); or
    2. A Limited child support agreement (‘LCSA’).

    BCSA
    BCSAs are intended to provide a high level of certainty and finality about child support arrangements. As such, the terms of an agreement are usually unable to be varied once the agreement is signed and the agreement is much more difficult to have terminated or set aside by a Court.

    LCSA
    In comparison, LCSAs are designed to consider changing circumstances and may be brought to an end after three (3) years if either party desires, or sooner if certain changes occur or the Court decides that the child support to be paid pursuant to the agreement is not proper or adequate. 

    Dorter Family Lawyers and Mediators offer specialist family law advice in Milsons Point on Sydney’s Lower North Shore, and are available to assist you with any questions you may have about child support.  Please get in touch with us on (02) 9929 8840 or rebekah@inst1045122-8984.ozhosting.com.

    Maeve Cooper
    Solicitor

    Rebekah Dorter
    Principal

    This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.

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    Your Pet as Property: The Property Pet Predicament 1024 683 Dorter

    Your Pet as Property: The Property Pet Predicament

    Pets as Property

    With the increase of pet adoption and purchases during times of COVID-19, you may want to know how the Family Court would currently treat our furry friends in a family law dispute, should it eventuate.

    While most pet-lovers easily consider their pets and other furry-friends honorary family members and life-time companions, figuring out who keeps the fur baby can often be distressing as pet “custody” disputes remain unclear in the realm of Family Law. We understand that separating pets from children and their owners can be stressful and difficult, adding another layer of tension during an already difficult time and, as a result, it is important to know how the Court deals with pet custody disputes.

    Pets are Property

    There is currently little to no legislation to assist with navigating pet custody. As a result, the Courts often approach pets in conjunction with personal property or other assets under s 79(1) of the Family Law Act, applying principles that would be applied to other personal assets including furniture or clothing.

    The Court has a duty to finalise all financial relationships between the parties and to ensure that their financial ties are severed with finality. As pets are considered property, this means the Court in the Family Court jurisdiction is unlikely to grant orders for shared ‘pet custody’ so to speak.

    Similar to treating any other asset of a property dispute, the Court will consider a number of factors to determine who will be able to retain their pet companion, including:

    1. Who the pet resided with prior to, during and following separation;
    2. The relationship each of the parties have with the pet;
    3. Who has been responsible for the financial expenses associated with owning the pet;
    4. Who has the most suitable place for the pet to live; and
    5. Who the pet is registered to.

    Every matter differs on a case by case basis and the weight on each factor will also depend on the circumstances of the case.

    This is often unsatisfactory and fails to recognise the emotional relationship built with your companion. As a result, alternative options may be required to determine the care arrangements for your companion. There are a number of different options that may assist you when dealing with separation when it comes to you beloved family pets

    Negotiation

    As with any other parent, it is always best to resolve any differences by negotiating the living arrangements between the parents.  We understand that negotiation can be hard during difficult times, such as separation and as a result, we are here to help. This may be done by assisting you in articulating suitable arrangements through an exchanging of letters or face-to-face, during mediation, to determine what arrangements would be best suited for each party.

    It is important to note however that agreements reached by negotiation are not legally binding and can be subject to change. Although the benefit is flexibility, agreements are not enforceable under the Family Law Act unless they are considered Binding Financial Agreements, or are Orders of the Court.

    A “Pre-Nup” or in this case a “Pet-Nup”

    One alternative to formalise pet custody arrangements is in the form of a Binding Financial Agreements (BFA). A BFA is an enforceable contract and you can include clauses detailing pet care arrangements in the event of separation.  BFAs prior to marriage (otherwise known as pre-nuptial agreements) refer to agreements entered into between the parties which establish how financial affairs and property will be addressed in the event of a relationship breakdown. You can also enter into a BFA after separation.

    BFA’s do need to satisfy a number of legal requirements to be binding. However, it may be an effective way of amicably laying out custody arrangements of your beloved pet without requiring the intervention of the Court.

    Find more about Binding Financial Agreements here.

    Consent Orders

    Much like Negotiations, Consent Orders are made with the consent between the parties. Consent Orders refers to a written agreement that is approved by the Court and may encompass a range of issues including management of your fur-baby.

    The advantage of these Orders are that they usually legally binding and therefore enforceable upon both parties, ensuring that any agreement that is reached will continue in accordance with the Orders of the Court. However, in the context of pet custody, there is much debate whether Orders made for ‘spend time’ arrangements or ‘shared’ care for your pets are enforceable Orders. This is because pets are considered ‘property’ and the Court has a duty to finalise and determine all financial relationships between the parties.

    However, there has been circumstances where the Court was prepared to make Orders for shared ‘custody’ of the pets ordering the pet to remain with children and to travel between residences on the same schedule as the children.

    Dorter Family Lawyers and Mediators offer specialist family law advice in McMahons Point on Sydney’s Lower North Shore, and are available to assist you with any questions you may have about your pet predicament.  Please get in touch with us on (02) 9929 8840 or mail@dorterfamilylawyers.com.

    Julie Cheung

    Associate

    Rebekah Dorter

    Principal

    This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.

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    Unsafe at Home 1024 495 Dorter

    Unsafe at Home

    When being at home may not be the safest place …

    As Australia and the world are working tirelessly towards stopping the spread of the Coronavirus by imposing several restrictions on the movements of citizens, those restrictions together with social isolation and economic pressure create a petri dish for an increase in domestic and family violence.

    It has been reported that Google searches on domestic violence have surged by up to 75 percent since the first recorded Coronavirus case. In these difficult times it is important to raise awareness about domestic violence and the support available for victims.

    If you are feeling unsafe at home, there is help available for you – from police, counsellors and lawyers.

    What is domestic violence and family violence?

    Domestic and family violence is an abusive behaviour in which one person seeks to control and coerce another person in a family or domestic relationship.

    It can take many forms and can include:

    • Sexual violence;
    • Psychological violence including intimidation, gaslighting, threatening, verbal abuse;
    • Coercive and controlling behaviour;
    • Social violence such as controlling or limiting social activities, isolating a partner from family or friends;
    • Financial and economic abuse;
    • Abuse based on spiritual views.

    What relationships are considered “domestic”?

    • Intimate relationships: husband and wife, de facto partners, boyfriend and girlfriend, same sex relationships;
    • Family relationships: older parents and their children, other family members including step-parents; and
    • Other relationships: such as person with a disability and their carer.

    How can you be protected – what is an Apprehended Domestic Violence Order?

    An Apprehended Domestic Violence Order (ADVO) is an order made by the Court against a person (referred as defendant) in order to protect you from future abuse. An ADVO can be adapted to your particular circumstances to provide you with the best possible protection from violence and also extends to other persons with whom you have a domestic relationship, such as your children or a new partner. If a defendant disobeys the orders in an ADVO it can lead to criminal charges.

    How can I apply for an ADVO?

    1. Police can apply for an ADVO on your behalf. Many police stations have designated Domestic Violence Liaison Officers who can assist you with the application;
    2. A lawyer can apply for an ADVO on your behalf; and
    3. You can also make an application at your local court.

    What if you need immediate protection?

    If you need immediate protection the police can apply for a provisional or interim ADVO for your protection which will last until it is revoked or until an interim or final order is made.

    Importance of safety planning

    If you are experiencing domestic violence or family violence it is crucial that you have a safety plan in place. It is helpful to seek help from a professional such as a counsellor in preparing your safety plan. Safety planning is about taking control over your life and taking proactive steps towards living life without fearing for your and your children’s safety.

    Some things to consider when preparing your safety plan

    1. Identify a ‘safe room’ in your home where you can wait for the arrival of the police. If the room cannot be locked, consider installing a lock to make it more secure.
    2. The most dangerous rooms at your home are the rooms where the person who is violent has access to weapons such as the kitchen or the bathroom. If you sense that your partner could become violent remove yourself from the ‘dangerous areas’.
    3. Prepare an escape plan and an ‘escape bag’ with a few essential belongings and the most important documents and hide it in a safe place.
    4. Have a second phone (if possible) hidden and fully charged and ensure that your safe room has sufficient phone coverage.
    5. Teach your children how to call the police and how to give their full name and address.
    6. Have a ‘code word’ you can use on the phone without attracting attention and let your friends and family know that the word means that you are feeling unsafe.
    7. Keep your friends and family informed about your circumstances.

    Domestic Violence and Family Violence Services

    For more help and support please visit:

    • Rape & Domestic Violence Services Australia.
    • Domestic Violence Line (Ph 1800 656 463).
    • No to Violence.
    • Relationships Australia.
    • Women’s Legal Services NSW.
    • LawAccess NSW.
    • Legal Aid.

    We understand that it takes courage to seek help from family and domestic violence and it can be very difficult. If you require assistance, please contact Dorter Family Lawyers and Mediators, family lawyers based in North Sydney and McMahons Point, on (02) 9929 8840 or mail@inst1045122-8984.ozhosting.com for a confidential discussion.

    Tim Russell

    Solicitor

    Rebekah Dorter 

    Principal

    This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.

    family-law-solicitors-sydney
    COVID-19 & Financial Support 1024 683 Dorter

    COVID-19 & Financial Support

    COVID-19 & FINANCIAL SUPPORT – HOW DO I GET IT?

    Financial support from your former spouse or partner in family law matters, referred to as ‘maintenance’, is nothing new. However, the COVID-19 pandemic is creating a challenging environment for households – financial uncertainty, job losses and illness. We are often approached for urgent advice from many clients asking about their legal right to financial assistance in these circumstances.

    MAINTENANCE

    If you require financial support and your former partner can assist you financially, but is not willing to do so, our Family Law system can help.

    Recently, where a former spouse refused to provide financial support we assisted by successfully obtaining an Order from the Family Court for our client to be paid an amount each week from her former husband, with that payment to continue indefinitely until a Final Hearing. The benefit of that Order to our client (and her child) in the present financial climate is significant.

    DO YOU HAVE A ‘NEED’?

    In determining what Order, if any, should be made, the Court is required to consider firstly the “need” of the party seeking the financial assistance. Some relevant factors include:-

    1. What income the party receives? Importantly, the Court is unable to take into account an income tested pension, allowance or benefit;
    2. What expenses are incurred, such as weekly costs for food, a motor vehicle, telephone, entertainment costs, children’s costs, gym, health and beauty, holidays and the like;
    3. Whether the party was financially supported by the other party during the relationship;
    4. Whether the party has the care of children, or another person;
    5. The age and health of the party;
    6. Whether the party is able to work greater hours, or re-enter the workforce if they have had time away from paid employment during the relationship;
    7. A standard of living that in all the circumstances is reasonable.

    If the Court is satisfied that from these factors that the party has a “need” for financial assistance, it is then required to consider whether the other party has the “capacity to pay”.

    CAPACITY TO PAY

    The Court will make an assessment of a party’s “capacity to pay” based on the financial obligations of that party. When considering a party’s financial obligations, or their capacity to pay, the Court may take into account a number of factors, including:

    1. Their property, income from all sources and their financial resources available;
    2. The use to which that person is applying their income;
    3. The factors listed above, including their age, health and whether they have the care of children or another person.

    When considering a party’s expenses the Court can make an assessment as to the reasonableness of those expenses. For example, the Family Court found in favour of our client, awarding her a certain amount in maintenance week, as the Court found that our client‘s  former spouse was applying income towards new or unnecessary expenses to keep funds out of reach of our client, by paying for renovations and depositing additional funds into the mortgage.

    FAIRNESS

    Ultimately, the Family Court is required to make orders which are ‘fair’, or ‘just and equitable’ in the circumstances.

    Each family, and each separation, is unique.  It is important that you obtain expert Family Law advice when you separate or divorce in order to obtain your best outcome and settlement, and an outcome which is fair.

    MEDIATION, OR COURT?

    Our team of Family Law experts will assist you, providing you with strategic, expert and timely advice.

    The majority of family law disputes fortunately settle without Court intervention. If an agreement cannot be reached between couples the alternatives available include:

    1. Mediation;
    2. Arbitration; and
    3. Collaboration between Lawyers.

    If you require assistance, we are available using a number of platforms – telephone, Skype, Zoom, Teams, Facetime.

    Otherwise, please contact Dorter Family Lawyers and Mediators on (02) 9929 8840 or mail@inst1045122-8984.ozhosting.com for a confidential discussion.

    Dorter Family Lawyers and Mediators offers expert family law advice in McMahons Point on Sydney’s Lower North Shore.

    Andrew Johnson

    Senior Associate

    Rebekah Dorter 

    Principal

    This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.

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    Co-parenting in the Time of COVID19 1024 682 Dorter

    Co-parenting in the Time of COVID19

    The current COVID19 pandemic has required many of us to drastically alter our way of life in a matter of weeks and this in turn is having a significant impact on families and arrangements for the care of children.

    For separated parents and carers, the additional stressors and uncertainties of the COVID19 pandemic can make navigating the Family Law process and co-parenting more challenging. In recent weeks we have given urgent advice to our concerned clients about how the COVID19 virus will impact their ability to comply with parenting orders and the options available to them if disputes arise as a consequence of the current pandemic.

    Guidance from the Courts

    On 26 March 2020, the Chief Justice of the Family Court of Australia and Federal Circuit Court of Australia, the Hon Will Alstergren, released a statement regarding parenting orders and the COVIC 19 pandemic. The statement provides useful guidance to parents concerned about their capacity to comply with parenting orders in the face of the current and potential restrictions and the capacity of the Court to assist them with these issues.

    The key points from the statement are:

    • The Courts remain open to assist parties and provide parents with general guidance;
    • Parents and Carers must continue to act in the best interests of their children;
    • Parents and Carers are expected to comply with Court Orders in relation to parenting arrangements, including facilitating time being spent by children with each parent or carer pursuant to parenting orders.

    Complying with Parenting Orders in the pandemic

    If parents face circumstances where social distancing restrictions make complying with orders impracticable (for instance where orders designate changeovers are to occur at a contact centre or school which is not presently operating), they are encouraged to take the following steps:

    1. As a first step, and where it is safe to do so, parents should communicate with each other about their ability to comply with the current orders and attempt to find a practical solution to these difficulties. If you are communicating with the other parent in these circumstances, it is important for both parents to always consider the safety and best interests of the child, while appreciating the concerns of the other parent when attempting to reach new or revised arrangements. It is also important for parties to have regard to the likelihood of infection to vulnerable members of the child’s family and household, such as grandparents and those who may have underlying health conditions.

    Where Agreement can be reached

    1. If parents and carers are able to reach an agreement on new or temporary parenting arrangements, they should put the terms of this agreement in writing in a document, or otherwise by email, text message or Whatsapp message. This is particularly important for parties who are presently involved in or likely to be involved in later family law hearings.
    2. If parties wish to formalise their agreement as orders, they have the option of putting consent orders to the Court electronically by filing them with an Application for Consent Orders. We are able to assist parties in formalising the terms of consent orders for this purpose.

    Where parties are unable to reach agreement

    1. Parties who are not able to agree to vary parenting arrangements, or it is not safe for them to do so, are advised to keep children safe until the dispute has been resolved. Parents in this situation should take steps to ensure that each parent or carer continues to have some contact with the child/ren consistent with the parenting arrangements such by video conferencing, social media or by telephone.
    2. Where orders cannot be strictly adhered to, it is important that parties ensure the purpose or spirit of the orders are respected when considering altering the arrangements and that parents and carers act in the best interest of the children at all times.
    3. If parties cannot agree to alternate arrangements, or it is unsafe to do so, and one or both parents have real concerns, parents still have the option to make an application to the Court electronically to seek a variation of orders.

    If you have concerns about implementing or abiding parenting arrangements in the context of the COVID19 pandemic, our team of highly qualified family lawyers are here to assist you. We have adopted measures to ensure that we continue to be able to provide tailored advice while prioritising the health and safety of all of our clients and their families during this period.

    We are able to provide fierce representation in contested Court hearings where required, but also pride ourselves on reaching swift, amicable agreements for parenting arrangements through:-

    1. Mediation;
    2. Arbitration; and
    3. Collaboration with peers.

    Dorter Family Lawyers and Mediators offer specialist family law advice in McMahons Point on Sydney’s Lower North Shore, and are available to assist you with any questions you may have about your parenting arrangements.  Please get in touch with us on (02) 9929 8840 or mail@inst1045122-8984.ozhosting.com.

    Lauren Sanderson

    Solicitor

    Rebekah Dorter

    Principal

    This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.